Browsing by Author "Kruuse, Helen"
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Item Form over function? the practical application of the recognition of Customary Marriages Act 1998 in South Africa(Juta Law, 2013) Mwambene, Lea; Kruuse, HelenThe Recognition of Customary Marriages Act 120 of 1998 is a major legislative measure for the development of customary marriages in line with the constitutional principle of equality, specifically for women. The article explores the interactions between this ideal in the Act with empirical observations and the latest judicial decisions concerning its application. It considers various examples of the lack of protection of women in relationships of a customary nature, and it concludes that both the state and courts favour a formal or definitional approach to customary marriage. In considering alternative approaches that could adequately protect vulnerable parties, two conclusions emerge: First, the article recommends a wholesale revision of the South African family law approach from a focus on form to dependency. Second (and as a short-term measure), the article advocates for the putative marriage doctrine to be applied in the customary marriage context to protect many women who are denied access to 'customary marriage' as a form, and as a result, all of the benefits that flow from such marriage.Item A maturing manifesto: The constitutionalisation of children’s rights in South African jurisprudence 2007-2012(Brill Academic Publishers, 2013) Sloth-Nielsen, Julia; Kruuse, HelenThis article represents the next in a series of five-year overviews of children’s rights in the courts in South Africa. Using the Convention on the Rights of the Child and the African Charter on the Welfare of Children as a point of departure, the study suggests that it is in the public sphere that children’s rights have had their most impact in the period under review. The article highlights eight areas of distinction in this five-year period: these include judicial approval of resource mobilisation for the fulfilment of children’s rights, emphasis on the quality of and standards in education; the development of innovative remedies to deal with unreasonable state measures affecting children, and an increasing focus on the right to dignity of the child. The authors conclude that the scope of the cases cited points to the growing insertion of children’s rights considerations in increasingly diverse areas of legal interaction. Furthermore, the authors posit that the CRC and ACRWC – together with non-binding sources of international law – have substantively informed and enriched the jurisprudence of South African courts.Item The thin edge of the wedge: ukuthwala, alienation and consent(Taylor & Francis, 2017) Mwambene, Lea; Kruuse, HelenUkuthwala, a mock abduction of a girl for the purpose of a customary marriage, has been subject to debate at both local and national level. This debate culminated into a South African Law Reform Commission Report on the practice of ukuthwala. However, the case of Jezile v S brings theory into reality, putting in stark relief the issues that surround this custom in a constitutional democracy. The Jezile case highlights the disjuncture between communities’ lived realities and the constitutional imperatives of the right to practice one’s culture, as well as the rights to equality and dignity, specifically for women and the girl child in the context of ukuthwala. Based on field research conducted in September 2015 and April 2016 in Engcobo (where the ukuthwala was alleged to take place in Jezile), this article sets out the community’s views in the aftermath of the case. Highlighting the alienation of the community from the law, and the complexities in understanding consent, the article posits that much more needs to be done from the ‘bottom up’ to ensure gender equality and protection of the girl child from harm.